Frequently Asked Questions(FAQs)
What is an Elder Law Attorney and how is it different from any other attorney?
An Elder Law Attorney specializes in all types of issues that impact people as they progress through the aging cycle of life. While a general practice attorney may be able to draft a Will, Power of Attorney, and Medical Directive, most do not have detailed knowledge of how the estate plan impacts ever area of your life as you age. When Elder Law Attorneys draft an Estate Plan, we discuss how property should be titled, how it should be distributed, and what happens if you, or someone else, become disabled. Elder Law Attorneys approach ever facet of the representation through the lens of planning for incapacity and ensuring that your wishes are satisfied regardless of where your life takes you. Additionally, Elder Law Attorneys generally advise clients about Medicaid, VA, and other areas of the law which are impacted due to aging and disability.
My parent needs a nursing home and doesn’t have Power of Attorney. Is there anything I can do?
Yes! If your loved one is mentally competent, we can still implement Medicaid asset protection strategies on his behalf, as well as have him execute a comprehensive Estate Plan. Frequently, someone needs nursing care assistance due to physical ailments, even though they are still completely mentally competent. In that case, we would meet with your loved one to determine what he wants to do. We would recommend executing a comprehensive Durable Power of Attorney, as well as other Estate Planning documents.
What happens if my parent doesn’t have a Power of Attorney or Medical Directives and isn’t mentally competent?
If your loved one doesn’t have a Durable Power of Attorney and Medical Directives and is suffering from dementia, or is otherwise mentally impaired, the planning process is more difficult, but may still be advisable. Without a Power of Attorney, no one is legally authorized to make financial decisions for your parent. In order to get that authority, we would need to seek Guardianship and Conservatorship from the Probate Court. We have to prove to the court that your parent is not competent and that appointing a Guardian to make decisions for his physical, mental, and emotional wellbeing and a Conservator for his financial wellbeing is in his best interest. After a Guardian and Conservator is appointed, we can then ask for permission to perform Estate and Medicaid planning. While the process is longer and more complex, it can be done and is always worth looking into.
What is the cost of long-term care?
In the practice of Elder Law, there are three basic questions. 1) Where are you going to live? 2) Who is going to care for you? 3) How is it going to be paid for?
The cost of long-term care can be staggering. Frequently, the third question dictates the answers to the first two questions. If someone wants to stay at home, but can’t afford the cost of home health care, they may be forced to move into an assisted living or a skilled nursing facility. In Georgia, the cost of having someone provide care in your home can range between $15.00 to $25.00 an hour. If you need around the clock care the cost would easily exceed $100,000 a year and could be as high as $200,000. The average Assisted Living Facility costs between $3,000 and $5,000 a month. In general, Aged and Disabled Medicaid will not pay for Assisted Living Facility expenses or home health care expense. There are exceptions to the general rule, but they are very fact specific. Finally, according to the Department of Health and Human Services, the average cost of a Skilled Nursing Facility in Georgia is $6,706 a month. Since Medicaid generally only pays for an aged or disabled person’s stay in a Skilled Nursing Facility, people are frequently forced into a nursing home due to inability to pay for home health care or an Assisted Living Facility on their own. This is why planning in advance of incapacity is so important.
Do I really need a Will, Power of Attorney and Medical Directive? I don’t really own that much.
Every person over the age of eighteen should have a Will (or Living Trust), Power of Attorney, and Medical Directive. Your Estate Plan is your way to stay in control no matter what happens to you. Although you may not own very much, you should still have a Will so you get to decide what happens to your property when you pass away. Georgia law has default settings in place (intestate law) which will decide for you what happens if you pass away without a Will. Most people want their property to go to people other than those who would get it under the default rules. The amount of property you own impacts how complex of a Will you should have rather than whether you should have one at all. Your Power of Attorney and Medical Directives are the documents which allow you to appoint someone to make financial and medical decisions for you when you can’t make them yourself. This means if you were in a car accident, in surgery, in a coma, or had Alzheimer’s, these documents would allow someone else to make your financial and medical decisions for you because you couldn’t make them yourself. So many people have Wills and think they are taken care of, but don’t have the Power of Attorney or Medical Directive in place. All three documents work together to keep you in control no matter what happens, and the Power of Attorney and Medical Directive are just as important as the Will.
Is the Will/Living Trust/Power of Attorney/Medical Directive I signed before moving to Georgia still valid?
The simple answer to this question is yes. Documents are generally transferrable from another state to Georgia. However, there could be some differences in law which might cause some problems. The same can be said if you are moving out of Georgia to another state. Federal law generally requires a state to recognize a document which was validly executed under the laws of a sister state. Regardless, it is always a good idea to get an attorney licensed in the state to review the documents to ensure there won’t be any problems when the documents are needed. If you’ve recently moved to Georgia, we recommend having an Elder Law Attorney licensed in Georgia review your documents with an eye towards long term planning in Georgia.
Do I need an attorney to help me with my Estate Plan or can I do it on my own?
From a legal standpoint, you do not need an attorney to assist you with drafting and signing estate planning documents. A Will which you draft which is validly executed will be probated the same way as a Will which is drafted by an attorney. However, the benefits to using an attorney are multifold. Using an attorney dramatically increases the chance of your documents being properly executed. If you have any questions about what the documents mean, how to execute them, or what to do in your situation, it is highly recommended to sit down with an Elder Law Attorney to discuss your unique situation. An Elder Law Attorney knows exactly what questions to ask and how to properly plan for life’s unexpected eventualities. The average consultation for a new client is between an hour and two hours. Creating an Estate Plan is not a cookie cutter process, and should not be taken lightly.
I’ve heard that Probate is bad. What is Probate and why is it bad?
Probate in and of itself is not bad. Probate is simply the process of getting a Judge to grant you the authority to distribute a deceased person’s property to their heirs or beneficiaries. Probate is often seen as a bad thing because of a few reasons: 1) it can be highly time intensive; 2) it can be expensive; and 3) it is public record. Probate in Georgia should take a minimum of six months and can be a much longer process. The county you live in, whether you had a Will or not, whether you owe anyone money, and how large your estate is can all impact the length of time it takes to probate your estate. Finally, Georgia law requires that to probate an estate, the person’s Will must be filed with the Court. Depending on how the Will is drafted, the Court may require an inventory of everything you owned at your death be filed. Everything filed with the Probate Court is public record so anyone can see your Will as well as the inventory. This is highly concerning to many people who value their privacy.
None of these factors on their own are bad. Whether your Estate Plan should be Will based and require probate, or Living Trust based and avoid probate is a highly personal decision. There is no one size fits all template.
Does everything I own go through probate when I die?
No, many people are surprised to learn that depending on how you own property, it may not pass to the beneficiaries you name in your Will. Property which is jointly owned with another person (for example, a joint bank account) will immediately become the property of the joint owner when you pass away. Additionally, assets like life insurance or retirement accounts generally pass by beneficiary designation rather than becoming part of your estate. In that case, your contract with the company allows you to name the person who will receive the property when you pass away. Even if you forget to name a beneficiary, the property will likely not become part of your estate as the terms of your contract with the company will govern who it will be paid to. This is why titling of your property (how you own it) is so important. Think about a blended family for a second. The spouses may not want to jointly own property as they may want their assets to go to their individual children when they pass away, rather than to their spouse. This is why there is no cookie cutter approach to estate planning. Every situation is unique and needs unique planning.
I’ve heard that Estate Tax can be as much as 20-30%. What can I do to avoid that?
For 2019, the Federal Estate Tax exclusion is $11.4 million. This means that a married couple can have a total of $22.8 million between the two of them without a dollar of their estates being taxed. It is not necessary for a Federal Estate Tax Return to be filed when a person passes away if their estate is less than the Federal Estate Tax Exclusion. Georgia does not have an estate tax meaning you could pass away having an estate worth $50 million and while there would be federal tax, there would be no state taxes. Most of our clients do not need to worry about an estate tax problem under current law. Unless Congress extends it, the Tax Cuts and Jobs Act is set to expire in 2025, causing the exclusion to revert to $5.49 million. If you and your spouse have an Estate which you expect will be greater than $10 million, we would recommend estate planning with an emphasis on tax planning.